On May 3, 2019 I was very pleased to give a keynote talk at the Go Open Data 2019 Conference in Toronto (video recordings of the conference proceedings are now available from the site). The following post includes the gist of my talk, along with hyperlinks to the different sources and examples I referenced. My talk was built around the theme of the conference: Inclusive, Equitable, Ethical, and Impactful.

In my talk this morning I am going to use the conference’s themes of Inclusive, Equitable, Ethical and Impactful to shape my remarks. In particular, I will apply these concepts to data in the smart cities context as this has been garnering so much attention lately. But it is also important to think about these in the artificial intelligence (AI) context which is increasingly becoming part of our everyday interactions with public and private sector actors, and is a part of smart cities as well.

As this is an open data conference, it might be fair to ask what smart cities and AI have to do with open data. In my view, these contexts extend the open data discussion because both depend upon vast quantities of data as inputs. They also complicate it. This is for three broad reasons:

First, the rise of smart cities means that there are expanding categories and quantities of municipal data (and provincial) that could be available as open data. There are also growing quantities of private sector data gathered in urban contexts in a variety of different ways over which arguments for sharing could be made. Thus, there is more and more data and issues of ownership, control and access become complex and often conflictual. Open government data used to be about the operations and activities of government, and there were strong arguments for making it broadly open and accessible.But government data is changing in kind, quality and quantity, particularly in smart cities contexts. Open data may therefore be shifting towards a more nuanced approach to data sharing.

Second, smart cities and AI are just two manifestations of the expanding demand for access to data for multiple new uses. There is not just MORE data, there are more applications for that data and more demand from public, private sector and civil society actors for access to it. Yet the opacity of data-hungry analytics and AI contribute to a deepening unease about data sharing.

Third, there is a growing recognition that perhaps data sharing should not be entirely free and open. Open data, under an open licence, with few if any restrictions and with no registration requirement was a kind of ideal, and it fit with the narrower concept of government data described earlier. But it is one that may not be best suited to our current environment. Not only are there potential use restrictions that we might want to apply to protect privacy or to limit undesirable impacts on individuals or communities, but there might also be arguments for cost recovery as data governance becomes more complex and more expensive. This may particularly be the case if use is predominantly by private sector actors – particularly large foreign companies. The lack of a registration requirement limits our ability to fully understand who is using our data, and it reduces the possibility of holding users to account for misuse. Again this may be something we want to address.

I mentioned that I would use the themes of this conference as a frame for my comments. Let me start with the first – the idea of inclusiveness.

Inclusive

We hear a lot about inclusiveness in smart cities – and at the same time we hear about privacy. These are complicated and intertwined.

The more we move towards using technology as an interface for public and private sector services, for interaction with government, for public consultations, elections, and so on, the more we need to focus on the problem of the digital divide and what it means to include everyone in the benefits of technology. Narrowing the digital divide will require providing greater access to devices, access to WIFI/broadband services, access to computer and data literacy, and access in terms of inclusiveness of differently-abled individuals.These are all important goals, but their achievement will inevitably have the consequence of facilitating the collection of greater quantities and more detailed personal information about those formerly kept on the other side of the digital divide. The more we use devices, the more data we generate. The same can be said of the use of public WIFI. Moving from analog to digital increases our data exhaust, and we are more susceptible to tracking, monitoring, profiling, etc. Consider the controversial LinkNYC Kiosks in New York. These large sidewalk installations include WiFi Access, android tablets, charging stations, and free nation-wide calling.But they have also raised concerns about enhanced tracking and monitoring. This is in part because the kiosks are also equipped with cameras and a range of sensors.

No matter how inclusiveness is manifested, it comes with greater data collection.The more identifiable data collected, the greater the risks to privacy, dignity, and autonomy. But de-identified data also carries its own risks to groups and communities. While privacy concerns may prompt individuals to share less data and to avoid data capture, the value of inclusiveness may actually require having one’s data be part of any collection. In many ways, smart cities are about collecting vast quantities of data of many different kinds (including human behavioural data) for use in analytics in order to identify problems, understand them, and solve them. If one is invisible in the data, so are one’s particular needs, challenges and circumstances. In cases where decisions are made based on available data, we want that data to be as complete and comprehensive as possible in order to minimize bias and to make better diagnoses and decisions. Even more importantly, we want to be included/represented in the data so that our specificity is able to influence outcomes. Inclusiveness in this sense is being counted, and counting.

Yet this type of inclusion has privacy consequences – for individuals as well as groups. One response to this has been to talk about deidentification. And while deidentification may reduce some privacy risks, but it does not reduce or eliminate all of them. It also does not prevent harmful or negative uses of the data (and it may evade the accountability provided by data protection laws). It also does not address the dignity/autonomy issues that come from the sense of being under constant surveillance.

Equitable and Ethical

If we think about issues of equity and ethics in the context of the sharing of data it becomes clear that conventional open data models might not be ideal. These models are based on unrestricted data sharing, or data sharing with a bare minimum of restrictions. Equitable and ethical data sharing may require more restrictions to be placed on data sharing – it may require the creation of frameworks for assessing proposed uses to which the data may be put. And it may even require changing how access to data is provided.

In the privacy context we have already seen discussion about reforming the law to move away from a purely consent-based model to one in which there may be “no-go zones” for data use/processing. The idea is that if we can’t really control the collection of the information, we should turn our attention to identifying and banning certain inappropriate uses. Translated into the data sharing context, licence agreements could be used to put limits on what can be done with data that is shared. Some open data licences already explicitly prohibit any attempts to reidentify deidentified data. The Responsible Data Use Assessment process created by Sidewalk Labs for its proposed data governance framework for Toronto’s Quayside development similarly would require an ‘independent’ body to assess whether a proposed use of urban data is acceptable.

The problem, of course, is that licence-based restrictions require oversight and enforcement to have any meaning. I wrote about this a couple of years ago in the context of the use of social media data for analytics services provided to police services across North America. The analytics companies contracted for access to social media data but were prohibited in their terms of use from using this data in the way they ultimately did. The problem was uncovered after considerable effort by the ACLU and the Brennan Center for Justice – it was not discovered by the social media companies who provided access to their data or who set the terms of use. In the recent Report of Findings by the Privacy Commissioner of Canada into Facebook’s role in the Cambridge Analytica scandal, the Commissioner found that although Facebook’s terms of service with developers prohibited the kind of activities engaged in by Dr Kogan who collected the data, they failed in their duty to safeguard personal information, and in particular, ignored red flags that should have told them that there was a problem. Let’s face it; companies selling access to data may have no interest in policing the behaviour of their customers or in terminating their access. An ‘independent’ body set up to perform such functions may lack the resources and capacity to monitor and enforce compliance.

Another issue that exists with ethical approaches is, of course, whose ethics? Taking an ethical approach does not mean being value-neutral and it does not mean that there will not be winners and losers. It is like determining the public interest – an infinitely malleable concept. This is why the composition of decision-making bodies and the location of decision-making power, when it comes to data collection and data sharing, is so important and so challenging.

Impactful

In approaching this last of the conference’s themes – impactful – I think it is useful to talk about solutions. And since I am almost out of time and this is the start of the day’s events, I am going to be very brief as solutions will no doubt be part of the broader discussion today.

The challenges of big data, AI and smart cities have led to a broad range of different proposed data governance solutions. Some of these are partial; for example, deidentification/anonymization or privacy by design approaches address what data is collected and how, but they do not necessarily address uses.

Some are aspirational. For example, developing ethical approaches to AI such as the Montreal Declaration for a Responsible Development of Artificial Intelligence. Others attempt to embed both privacy and ethics into concrete solutions – for example the federal Directive on Automated Decision-Making for the public sector, which sets parameters for the adoption, implementation and oversight of AI deployment in government. In addition, there are a number of models emerging, including data trusts in all their variety (ODI), or bottom-up solutions such as Civic Data Trusts (see, e.g.: MaRS, Element AI, SeanMcDonald), which involve access moderated by an independent (?), representative (?) body, in the public interest (?) according to set principles.

Safe sharing sites is another concept discussed by Lisa Austin and David Lie of the University of Toronto – they are not necessarily independent of data trusts or civic data trusts. Michel Girard is currently doing very interesting work on the use of data standards (see his recent CIGI paper).

On April 25 the federal Privacy Commissioner and the Privacy Commissioner of British Columbia released a joint Report of Findings in an investigation into Facebook’s handling of personal information in relation to the Cambridge Analytica scandal. Not surprisingly, the report found that Facebook was in breach of a number of different obligations under the Personal Information Protection and Electronic Documents Act(PIPEDA). Somewhat more surprisingly, the Report also finds that the corresponding obligations under BC’s Personal Information Protection Act (PIPA) were also breached. The Report criticizes Facebook for being less than fully cooperative in the investigation. It also notes that Facebook has disputed the Commissioners’ findings and many of their recommendations. The Report concludes by stating that each Commissioner will “proceed to address the unresolved issues in accordance with our authorities” under their respective statutes. Since the federal Commissioner has no order-making powers, the next step for him will be the Federal Court seeking a court order to compel changes. This will be a hearing de novo – meaning that the same territory will be covered before the Court, and Facebook will be free to introduce new evidence and argument to support its position. The court will owe no deference to the findings of the Privacy Commissioner. Further, while the Federal Trade Commission in the US contemplates fines to impose on Facebook in relation to its role in this scandal, Canada’s Commissioner does not have such a power, nor does the Federal Court. This is the data protection law we have – it is not the one that we need. Just as the Cambridge Analytica scandal drew attention to the dynamics and scale of personal data use and misuse, this investigation and its outcomes highlight the weaknesses of Canada’s current federal data protection regime.

As for the BC Commissioner – he does have order making powers under PIPA, and in theory he could order Facebook to change its practices in accordance with the findings in the Report. What the BC Commissioner lacks, however, with all due respect, is jurisdiction, as I will discuss below.

While the substantive issues raised in the complaint are important and interesting ones, this post will focus on slightly less well-travelled territory. (For comment on these other issues see, for example, this op-ed by Michael Geist). My focus is on the issue of jurisdiction. In this case, the two Commissioners make joint findings about the same facts, concluding that both statutes are breached. Although Facebook challenges their jurisdiction, the response, in the case of the BC Commissioner’s jurisdiction is brief and unsatisfactory. In my view, there is no advantage to Canadians in having two different data protection laws apply to the same facts, and there is no benefit in a lack of clarity as to the basis for a Commissioner’s jurisdiction.

This investigation was carried out jointly between the federal and the BC Privacy Commissioner. There is somewhat of a BC nexus, although this is not mentioned in the findings. One of the companies involved in processing data from Facebook is Aggregate IQ, a BC-based analytics company. There is an ongoing joint investigation between the BC and federal Privacy Commissioners into the actions of Aggregate IQ. However, this particular report of findings is in relation to the activities of Facebook, and not Aggregate IQ. While that other joint investigation will raise similar jurisdictional questions, this one deals with Facebook, a company over whose activities the federal Privacy Commissioner has asserted jurisdiction in the past.

There is precedent for a joint investigation of a privacy complaint. The federal privacy commissioners of Australia and Canada carried out a joint investigation into Ashley Madison. But I that case each Commissioner clearly had jurisdiction under their own legislation. This, I will argue, is not such a case. Within Canada, only one privacy Commissioner will have jurisdiction over a complaint arising from a particular set of facts. In this case, it is the federal Privacy Commissioner.

Unsurprisingly, Facebook raised jurisdictional issues. It challenged the jurisdiction of both commissioners. The challenge to the federal Commissioner’s jurisdiction was appropriately dismissed – there is a sufficient nexus between Facebook and Canada to support the investigation under PIPEDA. However, the challenge to the jurisdiction of the BC Commissioner was more serious. Nevertheless, it was summarily dismissed in the findings.

Uneasiness about the constitutional reach of PIPEDA in a federal state has meant that the law, which relies on the federal trade and commerce power for its constitutional legitimacy, applies only in the context of commercial activity. It applies across Canada, but it carves out space for those provinces that want to enact their own data protection laws to assert jurisdiction over the intra-provincial collection, use and disclosure of personal information. To oust PIPEDA in this sphere, these laws have to be considered “substantially similar” to PIPEDA (s. 26(2)(b)). Three provinces – BC, Alberta and Quebec, have substantially similar private sector data protection laws. Even within those provinces, PIPEDA will apply to the collection, use or disclosure by federally-regulated businesses (such as banks or airline companies). It will also apply to cross-border activities by private sector actors (whether international or inter-provincial). This split in jurisdiction over privacy can be complicated for individuals who may not know where to direct complaints, although the different commissioners’ offices will provide assistance. This does not mean there is no room for collaboration. The federal and provincial Commissioners have taken common positions on many issues in the past. These instances are conveniently listed on the website of Alberta’s privacy commissioner.

What has happened in this case is quite different. This is described as a joint investigation between the two Commissioners, and it has resulted in a joint set of recommendations and findings. Both PIPEDA and BC’s PIPA are cited as being applicable laws. In response to the challenge to the BC Privacy Commissioner’s jurisdiction, the Report tersely states that “PIPA (Personal Information Protection Act (British Columbia)) applies to Facebook’s activities occurring within the province of BC”. Yet no information is given as to what specific activities of Facebook were exclusively within the province of BC. No distinction is made at any point in the report between those activities subject to PIPA and those falling under PIPEDA. In this respect, it seems to me that Facebook is entirely correct in challenging the BC Privacy Commissioner’s jurisdiction. Facebook collects, uses and discloses personal information across borders, and its activities with respect to Canadians are almost certainly covered by PIPEDA. If that is the case, then they are not also subject to PIPA. The Exemption Order that finds PIPA BC to be substantially similar to PIPEDA provides:

1. An organization, other than a federal work, undertaking or business, to which the Personal Information Protection Act, S.B.C. 2003, c. 63, of the Province of British Columbia, applies is exempt from the application of Part 1 of the Personal Information Protection and Electronic Documents Act, in respect of the collection, use and disclosure of personal information that occurs within the Province of British Columbia.

(c) the collection, use or disclosure of personal information, if the federal Act applies to the collection, use or disclosure of the personal information;

The “federal Act” is defined in s. 1 of PIPA to mean PIPEDA. The scheme is quite simple: if PIPEDA applies then PIPA does not. If the federal Commissioner has jurisdiction over the activities described in the Report, the provincial Commissioner does not. The only way in which the BC Commissioner would have jurisdiction is if there are purely local, provincial activities of Facebook that would not be covered by PIPEDA. Nothing in the Findings suggests that there are. At a minimum, if there are separate spheres of legislative application, these should be made explicit in the Findings.

Jurisdictional issues matter. We already have a complex mosaic of different data protection laws (federal, provincial, public sector, private sector, health sector) in Canada. Individuals must muddle through them to understand their rights and recourses; while organizations and entities must likewise understand which laws apply to which of their activities. Each statute has its own distinct sphere of operation. We do not need the duplication that would result from the adjudication of the same complaint under two (or more) different statutes; or the confusion that might result from different results flowing from different complaint resolutions. If there are separate sets of facts giving rise to separate breaches under different statutes, this has to be spelled out.

Federal-provincial cooperation on data protection is important; it is also valuable for the different privacy commissioners to reach consensus on certain principles or approaches. But creating overlapping jurisdiction over complaints flies in the face of the law and creates more problems than it solves. We have enough data protection challenges to deal with already.

A recent decision on a motion before the Federal Court marks the progress of the Privacy Commissioner’s reference case on whether the Personal Information Protection and Electronic Documents Act (PIPEDA) includes a right to be forgotten. In an earlier report following the OPC’s consultation on digital reputation, the Privacy Commissioner had indicated that he was of the view that PIPEDA, in its unamended form, provided for a right to be forgotten that could be exercised against search engines.

The reference, launched on October 10, 2018, is linked to a complaint filed with the Office of the Privacy Commissioner (OPC) by an individual against Google. The Complainant is concerned that Google searches of his name produce links to news articles that he alleges “are outdated and inaccurate and disclose sensitive information such as his sexual orientation and a serious medical condition” (at para 6). The complainant’s view is that by providing prominent links to these articles, Google is breaching the PIPEDA. He is seeking to have these results de-indexed. This means that they would no longer appear in Google search results. De-indexing does not involve the removal of content from the source websites. Basically, the articles would still be out there, but they would not appear in Google search results. Unless similar orders were made against other search engines such as Bing, they content would be findable using those engines.

The Commissioner has referred two questions to the Federal Court. First, he seeks to know whether Google’s search engine activities constitute the “commercial activity” necessary to bring these activities within the scope of PIPEDA, which applies to the collection, use or disclosure of personal information in the course of commercial activity. The second question is whether Google’s search engine activities, even if commercial, fall within the exception to PIPEDA’s application where personal information is collected, used or disclosed “for journalistic, artistic or literary purposes and for no other purpose” (s. 4(2)(c)). Google and the Attorney General of Canada were given notice of the reference and are entitled to become parties to the reference. Google has challenged the scope of the reference. It seeks to add the question of whether, if PIPEDA does apply to the search engine’s activities, and if there is a deindexing order, such an order would violate s. 2(b) of the Canadian Charter of Rights and Freedoms. This motion to expand the scope of the reference had not yet been heard.

The CBC, along with a coalition of other Canadian media organizations brought motions seeking to be added as parties to the original reference. Their concern is that the Commissioner’s interpretation of the scope of PIPEDA as including a right to be forgotten is a violation of the freedom of expression guaranteed by s. 2(b) of the Charter. Their argument is based on the principle that the right of expression includes the right to receive information, and that measures taken to limit access to information in the news media thus breach the Charter. By bringing their motion, the media outlets sought to be added as parties, with the right to introduce evidence and make argument before the Court.

The motion was heard by Prothonotary Tabib, who rendered her decision on March 1. She began by noting that since the motion was being heard prior to any decision on Google’s motion to expand the scope of proceedings, party status would be considered only with respect to the original reference questions. She was critical of the motion on the basis that it proceeded “from the fundamental assumption that the Court’s determination of the jurisdictional questions in a way that confers jurisdiction on the OPC to investigate the underlying complaint will inevitably result in deindexing lawful news media content from Internet search results” (at para 17). She noted that in fact the reference questions were directed towards the issue of whether the Commissioner had jurisdiction in the matter. If the outcome of the reference was a finding that there was jurisdiction, the Commissioner would still have to investigate, would have to find the complaint well-founded, and would have to determine whether de-indexing was an appropriate remedy. The Commissioner can only make non-binding orders, so no Charter rights would be violated unless the matter proceeded to a recommendation to de-index with which Google voluntarily complied. If Google refused to comply the complainant or the Commissioner could bring the matter to Federal Court seeking a binding order, but the Court would hold a hearing de novo and might reach different conclusions. Basically, the prothonotary was of the view that the matter was a long way from breaching anyone’s Charter rights. She noted that “The media parties’ reliance on assumptions as to the ultimate result to form the cornerstone of their argument conflates all subsequent steps and determinations into the preliminary issue” (at para 18).

Prothonotary Tabib considered Rule 104(1)(b) of the Federal Courts Rules, which empowers the Court to order a person to be joined as a party. She focused on the issue of whether the presence of the media parties was necessary “for a full and effectual determination” of all of the issues in the reference. The media companies argued that their presence was necessary since the results of the reference would be binding on them. Prothonotary Tabib noted:

The media parties’ arguments thus essentially rest on the underlying assumption that what is truly at issue in this reference is the constitutionality of the Privacy Commissioner "“intended”" institution of a deindexing process in respect of lawful news content from Internet search results. However, as determined above, that is not what is truly at issue in this reference. What is at issue here is only whether Google is subject to or exempt from the application of Part 1 of PIPEDA in respect of how it collects, uses or discloses personal information in the operation of its search engine service when it presents search results in response to an individual’s name. (at para 36)

She observed that the only direct effect of the outcome of the reference would be the Commissioner’s decision to proceed with the investigation of the complaint against Google. She also noted that any freedom of expression impact that might ultimately flow from this matter would be shared by all internet content providers, as well as all those who used Google’s search engines. If the Charter interests of the media entitled them to be parties, then there was virtually no limit to who could be a party – which would be an absurd and unmanageable result. In her view it would be more appropriate for the media companies to seek intervenor status. However, she found that their motion did not address the issues they would need to establish for intervenor status. In brief, they failed to show how their contributions to the argument would be distinct from what Google would provide as party to the reference case. The motions were dismissed, with leave provided for the companies to reapply for leave to intervene once Google’s motion to vary the scope of the reference is decided.

As discussed in my earlier posts here and here, Ontario’s new budget bill contains quite a number of measures related to digital, data and privacy issues. In this third post I look at the proposed new statute that will balance privacy with the openness of provincial tribunal adjudicative records.

This new statute responds to the decision in Toronto Star v. AG Ontario, discussed in an earlier post here,in which Justice Morgan of the Ontario Supreme Court ruled that Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) breached the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. It did so because of the way in which it applied to administrative tribunals in respect of requests for access to their adjudicative records. Some tribunals to which FIPPA applied required those seeking access to adjudicative records to file access to information requests. What breached the Charter right was the presumption in FIPPA that personal information could not be disclosed unless one of the statutory exceptions applied. This was found to clash with the open courts principle. Justice Morgan suspended the declaration of invalidity of the legislation for one year in order to give the government time to fix the problem. The year is up later this month; it is therefore not surprising that this legislative change has found its way into the omnibus bill.

The Tribunal Adjudicative Records Act, 2019provides, as a default principle, that the adjudicative records of tribunals prescribed by regulations enacted under this statute are to be made available to the public (s. 2(1)). The definition of adjudicative records in s. 1(2) is quite broad and includes transcripts of oral evidence, documents admitted in evidence, and reasons for decision. Adjudicative records expressly do not include personal notes or draft decisions, or records related to attempts to resolve matters through alternative dispute resolution procedures.

The obligation to disclose adjudicative records will be subject to any confidentiality orders that the tribunal might make (s. 2(2)). A confidentiality order in relation to personal information can be issued where:

2(3)(b) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

A confidentiality order may be applied for by a party to the proceedings or by a person who would be affected by the disclosure of the information at issue (s. 2(3)).

Section 3(1) gives tribunals the authority to make rules governing their own procedures relating to providing access or issuing confidentiality orders. Under s. 4, tribunals are, with ministerial permission, entitled to charge fees for access to their adjudicative records. The new statute also provides for consequential amendments to FIPPA that will exclude the application of that statute to “personal notes, draft decisions, draft orders and communications related to draft decisions or draft orders that are created by or for a person who is acting in a quasi-judicial capacity. It also excludes the application of FIPPA to adjudicative records covered by the new statute.

This new statute resolves the constitutional issues at the heart of the Toronto Star decision. It does not, however, resolve other issues related to privacy and administrative tribunal decisions that have long been the subject of debate and discussion. In a recent Ontario case, for example, the personal information of third parties to a matter before the Ontario Human Rights Tribunal ended up in the tribunal’s decision. While the new Tribunal Adjudicative Records Act will allow third parties to apply for confidentiality orders, it is not clear how such individuals will know in advance that their personal information might be published. Further, many administrative tribunals deal with highly sensitive matters involving personal health or financial information. While they are urged to take privacy into account in the drafting of their decisions and in the amount of personal information shared, the trend towards providing broader access through online publication of decisions is leading to greater privacy risks for individuals that may not be properly balanced against the open courts principle. It would have been good to see in this new statute some recognition of the importance of these issues. Administrative tribunals are not courts, and government would not unduly interfere with their independence by stating in law that the disclosure of personal information should be minimized to only that which is clearly necessary to explain the reasons for decision, or by limiting the disclosure of some personal information in versions of decisions published online.

FIPPA and MFIPPA set the rules for the collection, use and disclosure of personal information by the public sector. MFIPPA applies specifically to municipalities, and FIPPA to the broader public sector. Both statutes prohibit the disclosure of personal information under the custody or control of a public body unless such a disclosure falls under an exception. Currently, both statutes have an exception related to investigations which reads:

(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

The Budget Bill will amend this exception by replacing it with:

(g) to an institution or a law enforcement agency in Canada if,

(i) the disclosure is to aid in an investigation undertaken by the institution or the agency with a view to a law enforcement proceeding, or

(ii) there is a reasonable basis to believe that an offence may have been committed and the disclosure is to enable the institution or the agency to determine whether to conduct such an investigation;

Paragraph (g)(i) is essentially the same as the original provision. What is new is paragraph (g)(ii). It broadens the circumstances in which personal information can be shared with law enforcement. Not only that, it does so in the squishiest of terms. There must be a reasonable basis to believe that an offence may have been committed. This is different from a reasonable basis to believe that an offence has been committed. Not only does it lower the threshold in the case of individuals, it may also open the door to the sharing of personal information for law enforcement fishing expeditions. After all, if enough people file for certain benefits, it might be reasonable to believe that an offence may have been committed (there’s always someone who tries to cheat the system, right?). The exception could enable the sharing of a quantity of personal information to permit the use of analytics to look for anomalies that might suggest the commission of on offence. The presence of this amendment in an omnibus budget bill that will receive very little scrutiny or debate contradicts the government’s own statement, in its announcement of its data strategy consultation, that “Data privacy and protection is paramount.” This is not a privacy-friendly amendment.

The other set of amendments to FIPPA contained in the budget bill are aimed at something labelled “data integration”. This is a process meant to allow government to derive greater value from its stores of data, by allowing it to generate useful data, including statistical data, to government and its departments and agencies. It allows for the intra-governmental sharing of data for preparing statistics for the purposes of resource management or allocation, as well as the planning and evaluation of the delivery of government funded programs and services, whether they are funded “in whole or in part, directly or indirectly” (s. 49.2(b)).

Because these amendments contemplate the use of personal information, there are measures specifically designed to protect privacy. For example, under s. 49.3, personal information is not to be used for data integration unless other data will not serve the purpose, and no more personal information shall be used than is reasonably necessary to meet the purpose. Public notice of the indirect (i.e. not directly from the individual) collection of personal information must be provided under s. 49.4.Any collection of personal information can only take place after data standards provided for in s. 49.14 have been approved by the Privacy Commissioner (s. 49.5). Once collected, steps must be taken to deidentify the personal information. The amendments include a definition of deidentification, which involves the removal of direct identifiers as well as any information “that could be used, either alone or with other information, to identify an individual based on what is reasonably foreseeable in the circumstances” (s. 49.1). Section 49.8 specifically prohibits anyone from using or attempting to use “information that has been identified under this Part, either alone or with other information, to identify an individual”.

Provision is made for the disclosure of personal information collected through the data integration scheme in limited circumstances – this includes the unfortunately worded exception discussed above where “there is a reasonable basis to believe that an offence may have been committed”. (s. 49.9(c)(ii)).

In terms of transparency, a new s. 49.10 provides for notice to be published on a website setting out information about any collection of personal information by a ministry engaged in data integration. The information provided must include the legal authority for the collection; the type of personal information that may be collected; and the information sources, the purpose of any collection, use or disclosure, as well as the nature of any linkages that will be made. Contact information must also be provided for someone who can answer any questions about the collection, use or disclosure of the personal information. Contact information must also be provided for the Privacy Commissioner. Data standards developed in relation to data integration must also be published (s. 49.14(2)), and any data integration unit that collections personal information must publish an annual report setting out prescribed information (s. 49.13).

Section 49.11 mandates the safe storage and disposal of any personal information, and sets retention limits. It also provides for data breach notification to be made to affected individuals as well as to the Commissioner. The Commissioner has the power, under s. 49.12 to review the practices and procedures of any data integration unit if the Commissioner “has reason to believe that the requirements of this Part are not being complied with”. The Commissioner has power to make orders regarding the discontinuance or the modification of practices or procedures, and can also order the destruction of personal information or require the adoption of a new practice or procedure.

The amendments regarding data integration are clearly designed to facilitate a better use of government data for the development and delivery of programs and services and for their evaluation. These are important measures and seem to have received some careful attention in the amendments. Once again, however, these seem to be important pieces of the data strategy for which the government has recently launched a consultation process that seems to be becoming more irrelevant by the day. Further, as part of an omnibus budget bill, these measures will not receive much in the way of discussion or debate. This is particularly unfortunate for two reasons. First, as the furore over Statistics Canada’s foray into using personal information to generate statistical data shows, transparency, public input and good process are important. Second, the expansion of bases on which personal information shared with government can be passed along to law enforcement merits public scrutiny, debate and discussion. Encroachments on privacy slipped by on the sly should be particularly suspect.

On April 4, 2019 I appeared before the Senate Standing Committee on Banking, Trade and Commerce (BANC) which has been holding hearings on Open Banking, following the launch of a public consultation on Open Banking by the federal government. Open banking is an interesting digital innovation initiative with both potential and risks. I wrote earlier about open banking and some of the privacy issues it raises here. I was invited by the BANC Committee to discuss ‘data ownership’ in relation to open banking. The text of my open remarks to the committee is below. My longer paper on Data Ownership is here.

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Thank you for this invitation and opportunity to meet with you on the very interesting subject of Open Banking, and in particular on data ownership questions in relation to open banking.

I think it is important to think about open banking as the tip of a data iceberg. In other words, if Canada moves forward with open banking, this will become a test case for rendering standardized data portable in the hands of consumers with the goal of providing them with more opportunities and choices while at the same time stimulating innovation.

The question of data ownership is an interesting one, and it is one that has become of growing importance in an economy that is increasingly dependent upon vast quantities of data.However, the legal concept of ‘ownership’ is not a good fit with data. There is no data ownership right per se in Canadian law (or in law elsewhere in comparable jurisdictions, although in the EU the idea has recently been mooted). Instead, we have a patchwork of laws that protect certain interests in data. I will give you a very brief overview before circling back to data portability and open banking.

The law of confidential information exists to protect interests in information/data that is kept confidential. Individuals or corporations are often said to ‘own’ confidential information. But the value of this information lies in its confidentiality, and this is what the law protects. Once confidentiality is lost, so is exclusivity – the information is in the public domain.

The Supreme Court of Canada in 1988 also weighed in on the issue of data ownership – albeit in the criminal law context. They ruled in R. v. Stewart that information could not be stolen for the purposes of the crime of theft, largely because of its intangible nature. Someone could memorize a confidential list of names without removing the list from the possession of its ‘owner’. The owner would be deprived of nothing but the confidentiality of and control over the information.

It is a basic principle of copyright law that facts are in the public domain. There is good reason for this. Facts are seen as the building blocks of expression, and no one should have a monopoly over them. Copyright protects only the original expression of facts. Under copyright law, it is possible to have protection for a compilation of facts – the original expression will lie in the way in which the facts are selected or arranged. It is only that selection or arrangement that is protected – not the underlying facts. This means that those who create compilations of fact may face some uncertainty as to their existence and scope of any copyright. The Federal Court of Appeal, for example, recently ruled that there was no copyright in the Ontario Real Estate Board’s real estate listing data.

Of course, the growing value of data is driving some interesting arguments – and decisions – in copyright law. A recent Canadian case raises the possibility that facts are not the same as data under copyright law. This issue has also arisen in the US. Some data are arguably ‘authored’, in the sense that they would not exist without efforts to create them. Predictive data generated by algorithms are an example, or data that require skill, judgment and interpretation to generate. Not that many years ago, Canada Post advanced the argument that they had copyright in a postal code. In the US, a handful of cases have recognized certain data as being ‘authored’, but even in those cases, copyright protection has been denied on other grounds. According ownership rights over data – and copyright law provides a very extended period of protection – would create significant issues for expression, creation and innovation.

The other context in which the concept of data ownership arises is in relation to personal information. Increasingly we hear broad statements about how individuals ‘own’ their personal information. These are not statements grounded in law. There is no legal basis for individuals to be owners of their personal information. Individuals do have interests in their personal information. These interests are defined and protected by privacy and data protection laws (as well as by other laws relating to confidentiality, fiduciary duties, and so on). The GDPR in Europe was a significant expansion/enhancement of these interests, and reform of PIPEDA in Canada – if it ever happens – could similarly enhance the interests that individuals have in their personal data.

Before I speak more directly of these interests – and in particular of data portability – I want to just mention why it is that it is difficult to conceive of interests in personal data in terms of ownership.

What personal data could you be said to own, and what would it mean? Some personal data is observable in public contexts. Do you own your name and address? Can you prevent someone from observing you at work every day and deciding you are regularly late and have no dress sense? Is that conclusion your personal information or their opinion? Or both? If your parents’ DNA might reveal your own susceptibility to particular diseases, is their DNA your personal information? If an online bookstore profiles you as someone who likes to read Young Adult Literature – particularly vampire themed – is that your personal information or is it the bookstore’s? Or is it both? Data is complex and there may be multiple interests implicated in the creation, retention and use of various types of data – whether it is personal or otherwise. Ownership – a right to exclusive possession – is a poor fit in this context. And the determination of ownership on the basis of the ‘personal’ nature of the data will overlook the fact that there may be multiple interests entangled in any single datum.

What data protection laws do is define the nature and scope of a person’s interest in their personal information in particular contexts. In Canada, we have data protection laws that apply with respect to the public sector, the private sector, and the health sector. In all cases, individuals have an interest in their personal information which is accompanied by a number of rights. One of these is consent – individuals generally have a right to consent to the collection, use or disclosure of their personal information. But consent for collection is not required in the public sector context. And PIPEDA has an ever-growing list of exceptions to the requirements for consent to collection, use or disclosure. This shows how the interest is a qualified one. Fair information principles reflected in our data protection laws place a limit on the retention of personal information – when an organization that has collected personal information that is now no longer required for the purpose for which it is collected, their obligation is to securely dispose of it – not to return it to the individual. The individual has an interest in their personal information, but they do not own it. And, as data protection laws make clear, the organizations that collect, use and disclose personal information also have an interest in it – and they may also assert some form of ownership rights over their stores of personal information.

As I mentioned earlier, the GDPR has raised the bar for data protection world-wide. One of the features of the GDPR is that it greatly enhances the nature and quality of the data subject’s interest in their personal information. The right to erasure, for example, limited though it might be, gives individuals control over personal information that they may have, at one time, shared publicly. The right of data portability – a right that is reflected to some degree in the concept of open banking – is another enhancement of the control exercised by individuals over their personal information.

What portability means in the open banking context is that individuals will have the right to provide access to their personal financial data to a third party of their choice (presumably from an approved list). While technically they can do that now, it is complicated and not without risk. In open banking, the standard data formats will make portability simple, and will enhance the ability to bring the data together for analysis and to provide new tools and services. Although individuals will still not own their data, they will have a further degree of control over it. Thus, open banking will enhance the interest that individuals have in their personal financial information. This is not to say that it is not without risks or challenges.

Ongoing litigation in Canada over the recovery by provincial governments of health care costs related to tobacco use continues to raise interesting issues about the intersection of privacy, civil procedure, and big data analytics. A March 7 2019 decision by the New Brunswick Court of Queen’s Bench (Her Majesty the Queen v. Rothmans Inc.) picks up the threads left hanging by the rather muted decision of the Supreme Court of Canada in The Queen v. Philip Morris International Inc.

The litigation before the Supreme Court of Canada arose from the BC government’s attempt to recover tobacco-related health care costs in that province. The central issue concerned the degree of access to be provided to one of the big tobacco defendants, Philip Morris International (PMI), to the databases relied upon by the province to calculate tobacco-related health care costs. PMI wanted access to the databases in order to develop its own experts’ opinions on the nature and extent of these costs, and to challenge the opinions to be provided by provincial experts who would have full access to the databases. Although the databases contained aggregate, de-identified data, the government denied access, citing the privacy interests of British Columbians in their health care data. As a compromise, they offered limited and supervised access to the databases at Statistics Canada Research Data Centre. While the other tobacco company defendants accepted this compromise, PMI did not, and sought a court order granting it full access.

The Supreme Court of Canada’s decision was a narrow one. It interpreted the applicable legislation as making health care records and documents of individuals non-compellable in litigation for recovery of costs based on aggregate health care data. The Court considered the health databases to be “records” and “documents” and therefore not compellable. However, their decision touched only on the issue of whether PMI was entitled to access the databases to allow its own experts to prepare opinions. The Court did not address whether a defendant would be entitled to access the databases in order to challenge the plaintiff’s expert’s report that was created using the database information. Justice Brown, who wrote for the unanimous Court stated: “To be clear, the databases will be compellable once "relied on by an expert witness": s. 2(5)(b). A "statistically meaningful sample" of the databases, once anonymized, may also be compelled on a successful application under ss. 2(5)(d) and 2(5) (e).” (at para 36) In response to concerns about trial fairness, Justice Brown noted the early stage of the litigation, and stated that: “Within the Act, the Legislature has provided a number of mechanisms through which trial fairness may be preserved. Specifically, s. 2(5)(b) itself requires that any document relied upon by an expert witness be produced.” (at para 34) He also observed that:

[Section] 2(5)(d) permits a court, on application, to order discovery of a "statistically meaningful sample" of any of the records and documents that are otherwise protected by s. 2(5)(b). No defendant has yet made such an application and thus no court has yet had reason to consider what would constitute a "statistically meaningful sample" of the protected documents. (at para 35)

The Supreme Court of Canada therefore essentially laid the groundwork for the motions brought to the New Brunswick Court of Queen’s Bench under essentially similar legislation. Section 2 of New Brunswick’sTobacco Damages and Health Care Costs Recovery Act is more or less identical to the provisions considered by the Supreme Court of Canada. Sections 2(5)(d) and (e) of the Act provide:

2(5). . .

(b) the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons are not compellable except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness,

. . .

(d) notwithstanding paragraphs (b) and (c), on application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in paragraph (b) and the order shall include directions concerning the nature, level of detail and type of information to be disclosed, and

(e) if an order is made under paragraph (d), the identity of particular individual insured persons shall not be disclosed and all identifiers that disclose or may be used to trace the names or identities of any particular individual insured persons shall be deleted from any documents before the documents are disclosed.

Thus, the provisions allow for discovery of documents relied upon by the government, subject to an obligation to deidentify them.

An expert witness for the Province of New Brunswick had produced several reports relying on provincial health care data. The province maintained that for privacy reasons the defendant should not have direct access to the data, even though it was deidentified in the database. It offered instead to provide recourse through a Statistics Canada Research Data Centre. The defendant sought “a "statistically meaningful sample" of clinical health care records concerning 1,273 individual insured persons in New Brunswick, under the authority of subsections 2(5)(d) and (e) of the Act.” (at para 2) It also sought a production order for “all Provincial administrative databases and national survey data” that was relied upon by the Province’s expert witness in preparing his reports. In addition, they sought access to data from other provincial health databases that were not relied upon by the expert in his report – the defendant was interested in assessing the approaches he chose not to pursue in addition to those he actually pursued. The province argued that it had provided sufficient access to relevant data through the Statistics Canada RDC, which implemented appropriate safeguards to protect privacy.

Justice Petrie first considered whether the access via Statistics Canada was adequate and he concluded that it was not. He noted that one of the other defendants in the litigation had filed an access to information request with Statistics Canada and had thereby learned of some of the work carried out by the province’s expert witness, including some “calculations and analysis” that he had chosen not to rely upon in his work. While the defendants were not prejudiced by this disclosure, they used it as an example of a flaw in the system administered by Stats Canada since its obligations under the Access to Information Act had led to the disclosure of confidential and privileged information. They argued that they could be prejudiced in their own work through Stats Canada by access to information requests from any number of entities with interests adverse to theirs, including other provincial governments. Justice Petrie sided with the defendants. He found that: “the Province's production of the data and materials relied upon by Dr. Harrison only within the confines and authority of a third party to this litigation, StatsCan/RDC poses a real risk to the confidentiality and privilege that must be accorded to the defendants and their experts.” (at para 66) He also stated:

The risk of potential premature or inadvertent disclosure, as determined by StatsCan, presents an unfair obstacle to the defendants' experts if required to undertake their analysis only within StatsCan/RDC. In short, the StatsCan Agreement terms and conditions are overly restrictive and likely pose a serious risk to trial fairness. I am of the view that less restrictive options are available to the Court and ones that more fairly balance trial fairness with the risks to any privacy breach for individual New Brunswickers. (at para 65)

These less restrictive options stem from the Courts own power to “provide for directions on production and to protect the personal and sensitive information of individuals.” (at para 68) Justice Petrie found that “there are no applicable restrictions under privacy legislation to prohibit the Court from ordering document production outside of the StatsCan/RDC in the circumstances.” (at para 72) He rejected arguments that the Statistics Act prevented such disclosures, ruling that custody and control over the health data remained shared between the province and Stats Canada, and that the court could order the province to disclose it. Further, it found:

Where, as here, the Province has served the defendants with five expert reports of Dr. Harrison and indicated their intention to call him as a witness at trial, I find that subsection 2(5)(b) of the Act expressly requires production of the materials "relied upon" by the expert in the ordinary course. I am confident that the Court is capable of fashioning an order which would adequately address any privacy or reidentification concerns while, at the same time, imposing more balanced measures on the defendants and/or their experts. (at para 82)

These measures could include a direction by the court that no party attempt to identify specific individuals from the deidentified data.

On the issue of the disclosure of a statistically significant sample of health records, the defendant sought a sample from over 1200 New Brunswick patients. The legislation specifically provides in s. 2(5)(d) that a court may“order discovery of a statistically meaningful sample of the documents”, so long as they are deidentified. Justice Petrie found that there was a statutory basis for making this order, so long as privacy could be preserved. He rejected the province’s argument that the only way to do this was through the Stats Canada RDC. Instead, he relied upon the court’s own powers to tailor orders to the circumstances. He stated: “I am of the view that there is a satisfactory alternative to the StatsCan/RDC Agreement on terms that can allow for any re-identification risks to be properly addressed by way of a consent order preferably, and if not, by way of further submissions and ruling of this Court.” (at para 131)

On the issue of privacy and the deidentified records in the statistically significant sample, Justice Petrie stated:

Even if individuals might be able to be re-identified, which I am not convinced, it is not clear why the defendants would ever do so. [. . .] With respect to this request for an individual's personal health records, the Province has suggested no other alternative to such a sample, nor any alternative to the suggested approach on "anonymization" of the information. (at para 141)

He granted the orders requested by the defendants and required the parties to come to terms on a consent order to protect privacy in a manner consistent with his reasons.

This decision raises issues that are more interesting than those that were before the Supreme Court of Canada, mainly because the court is required in this case to specifically address the balance between privacy and fairness in litigation. The relevant legislation clearly does not require defendants to accept the plaintiff’s analyses of health data at face value; they are entitled to conduct their own analyses to test the plaintiff’s evidence, and they are permitted to do so using the data directly and not through some intermediary. While this means that sensitive health data, although anonymized, will be in the hands of the defendant tobacco companies, the court is confident that the rules of the litigation process, including the implied undertaking rule and the power of the court to set limits on parties’ conduct will be sufficient to protect privacy. Although this court seems to believe that reidentification is not likely to be possible (a view that is certainly open to challenge), even if it were possible, direction from the court that no analyses designed to permit identification will take place, is considered sufficient.

(This post is admittedly on the long side - if you have read the case and all you want are my thoughts on the difference between majority and minority opinions, feel free to skip to "Concluding thoughts" at the end.)

On February 14, 2019 the Supreme Court of Canada released its long-awaited decision in R. v. Jarvis, a case in which a high school teacher was prosecuted for voyeurism after he used a pen camera to make multiple recordings of female students’ cleavage while he talked to them in hallways or labs at school. Jarvis was acquitted at trial on the basis that the judge was not persuaded beyond a reasonable doubt that the recordings were for a sexual purpose, which was an element of the crime. The Ontario Court of Appeal found that the recordings were for a sexual purpose, but they upheld the acquittal on the basis that the students had no reasonable expectation of privacy at school. (My post on the ONCA decision is here).

The only issue before the Supreme Court of Canada (SCC) was “whether the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.” (at para 4). The SCC ruled unanimously that the students had a reasonable expectation of privacy and that a conviction should be entered in the case. However, the Court split on how they reached that conclusion. Six judges opted for a contextual approach to the reasonable expectation of privacy that set out a non-exhaustive list of nine considerations to take into account in determining whether a person has been observed or recorded in circumstances giving rise to an expectation of privacy. In reaching this interpretation, these judges relied in part on ‘reasonable expectation of privacy’ jurisprudence developed by the Court under s. 8 of the Charter.The three minority judges rejected the use of privacy jurisprudence developed in the criminal context, where the interests of the state are pitted against those of the individual. They also disagreed with the majority’s list of factors to consider in assessing a reasonable expectation of privacy. The minority would have kept only those four of the nine factors that could be linked to elements of the offence in s. 162(1).

The importance of this decision lies in the contextual approach taken by the majority to the reasonable expectation of privacy. This approach moves us away from the troubling dichotomy between public and private space which seems to inform the decision of the majority of the Court of Appeal. While the location of the person who is being subject to observation or recording is one of the factors to take into account, it is only one of them. Similarly, awareness of or consent to potential observation or recording is only a consideration and is not on its own determinative. The contextual approach also permits consideration of the relationship between the parties.

In this case, Jarvis had been charged with the crime of voyeurism under s. 162(1) of the Criminal Code.It is useful to reproduce the relevant parts of this provision:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

[. . . ]

(c) the observation or recording is done for a sexual purpose.

For there to be a conviction, Jarvis’ recordings would have to have been of students “in circumstances that give rise to a reasonable expectation of privacy.” The recordings were made when Jarvis engaged individual students or small groups of students in conversation in the school’s hallways or common areas.

The Majority’s approach to Interpretation

The majority’s interpretation of the phrase “circumstances that giver rise to a reasonable expectation of privacy” is important, particularly since the majority of the ONCA had focused predominantly on location in determining whether a reasonable expectation of privacy arose on the facts. The majority of the SCC had some important things to say on the issue of privacy in public space. While acknowledging that expectations of privacy “will generally be at their highest when a person is in a traditionally ‘private’ place from which she has chosen to exclude all others”, (at para 37), Chief Justice Wagner nonetheless affirmed that a person does not lose all expectation of privacy because she is in public. He stated:“a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types.” (at para 38) He continued: “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observations or recording”. (at para 41)

The Chief Justice noted that the wording of s. 162(1) also supported the view that a reasonable expectation of privacy was not tied to location. In the first place, that provision speaks of “circumstances” giving rise to a reasonable expectation of privacy. It identifies three possible situations, the first of which is tied to location (where a person is “in a place in which a person can reasonably be expected to be nude. . . or to be engaged in explicit sexual activity: s. 162(1)(a)). (at para 44) But paragraph 162(1)(c) merely refers to situations where “the observation or recording is done for sexual purposes.This latter provision contains no element of location.

The majority ruled that the jurisprudence developed under s. 8 of the Charter, which provides a right to be free from unreasonable search or seizure, could be used in interpreting the concept of “reasonable expectation of privacy”. This is a point on which the minority justices differed sharply. Section 8 of the Charter essentially provides an accused with what amounts to privacy protection from state intrusion. The concept of a “reasonable expectation of privacy” is a key element of a s. 8 analysis. However, as the majority notes, it is also a term used in other contexts – both civil and criminal. Interestingly, those civil contexts in which the phrase is used in Canadian legislation are predominantly found in relatively new statutes that provide tort recourse for the non-consensual distribution of intimate images. The phrase appears in legislation of this kind in Nova Scotia, Newfoundland, Alberta, Saskatchewan and Manitoba.

The majority noted that the Court’s s. 8 jurisprudence requires a contextual analysis of the reasonable expectation of privacy.Further, the case law teaches us that ‘privacy is not an ‘all-or-nothing’ concept and that “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy.” (at para 61) Privacy is differently affected by recordings than by passing observations. Further, the impact of new and emerging technologies needs to be carefully considered. It is possible that “technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not.” (at para 63). The majority also noted that “’reasonable expectation of privacy’ is a normative rather than a descriptive standard.” (at para 68). This means that a person’s expectation of privacy should not be determined simply on the basis of whether there is a risk that they might be observed or recorded.If this were the case, advances in technology would shrink reasonable expectations of privacy to nothingness. As a result, the majority framed the core question as “whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue.” (at para 70)

Applying the contextual approach

For the majority, the determination of whether a person was in “circumstances that give rise to a reasonable expectation of privacy” should be guided by a non-exhaustive list of contextual considerations. These considerations should include:

1.The location the person was in when she was observed or recorded

2.The nature of the impugned conduct, that is whether it consisted of observation or recording

3.Awareness of or consent to potential observation or recording.

4.The manner in which the observation or recording was done

5.The subject matter or content of the observation or recording

6.Any rules, regulations or policies that governed the observation or recording in question.

7.The relationship between the person who was observed or recorded and the person who did the observing or recording.

8.The purpose for which the observation or recording was done

9.The personal attributes of the person who was observed or recorded.

Applying these factors to the case before them, the majority noted that the videos were taken at school. The majority of the Court of Appeal had considered schools to be public places. However, the majority of the SCC found that schools are not entirely ‘public’ in nature. Access is restricted, and schools are “subject to formal rules and informal norms of behaviour, including with respect to visual recording, that may not exist in other quasi-public locations”. (at para 73). They noted that the young women were not merely observed, they were recorded – and they were unaware that recording was taking place. Although the ONCA had taken into account the fact that students were aware of continuous recording by security cameras in schools, the majority of the SCC ruled that “not all forms of recording are equally intrusive” and “there are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from Mr. Jarvis’ recordings” (at para 75). The majority found Jarvis’s recordings were “far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.”(at para 76).

In considering the content of the recordings, the majority noted that while the recordings were of students engaging in normal school activities, they focused close-up on their faces and breasts. The videos targeted specific students rather than capturing general scenes of school activity. The majority stated:“the videos do not show students merging into the “situational landscape”; rather, they single out these students, make them personally identifiable, and allow them to be subjected to intensive scrutiny.” (at para 80).

On the issue of rules and policies, the majority noted that there was a formal school board policy that prohibited the making of recordings of this kind. While the existence of such rules or policies is not determinative, and their weight might vary depending on the circumstances, in this case, the policy gave clear support to a finding of a reasonable expectation of privacy on the part of the students. Jarvis’ behavior was outside of the clearly established norms for teachers at school.

The seventh factor is important in this case. It relates to the relationship between the perpetrator and the person being observed or recorded. The majority found that a relationship of trust existed between teachers and students. The Chief Justice wrote: “It is inherent in this relationship that students can reasonably expect teachers not to abuse their position of authority over them, and the access they have to them, by making recordings of them for personal, unauthorized purposes” (at para 84). Of all of the factors in the majority’s list, this is the one that makes it most clear that a reasonable expectation of privacy does not rely simply on factors related to location, awareness, or the logistics of the observation or recording. Perhaps because of this, it is one of the factors the minority justices rejected.

The majority also considered the purpose of the recording. Since conviction for voyeurism under s. 162(1)(c) requires that the observation or recording be for sexual purposes, this seems a bit redundant. However, the consideration is part of an framework for determining a reasonable expectation of privacy more generally – and presumably in contexts other than just s. 162(1) of the Criminal Code. Thus, for example, the fact that the school had video cameras in public spaces did not infringe on the students’ reasonable expectations of privacy, but Jarvis’ recordings did – a key reason (though not the only one) for this was linked to the purpose of the recordings. The majority of the Court of Appeal, by contrast, had fixed on location as crucial to the reasonable expectation of privacy; citing the public nature of schools and the already existing surveillance cameras, they found the students had no reasonable expectation of privacy

The final factor considered by the majority was the “personal attributes” of the affected persons. In this case, it meant taking into account that the people recorded were high school students. Justice Wagner noted that there is evidence of a “societal consensus” that children have “greater privacy rights than similarly situated adults.” (at para 86).

After applying these criteria to the facts, the majority easily concluded that the young women recorded by Jarvis had a reasonable expectation of privacy. Justice Wagner wrote:“A student attending class, walking down a school hallway or speaking to her teacher certainly expects that she will not be singled out by the teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body.” (at para 90). Interestingly, he also indicated that he might have ruled the same way if the recordings had been made by a stranger on a public street.

The minority opinion

Justice Rowe wrote for the three judges in the minority. Although they too found that a conviction should be entered in this case, they had two main points of disagreement with the majority justices. The first was that, in their view, s. 8 case law should not be used in interpreting what a “reasonable expectation of privacy” is for the purposes of a criminal offence. They noted that s. 8 case law evolved to address the reasonable expectations of privacy that individuals have vis à vis the state. Section 162(1) involved the Crown having to prove that one individual encroached on the reasonable expectation of privacy of another; according to Justice Rowe, this was something very different from redressing “[t]he power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupations under s. 8 of the Charter”. (at para 102)

Justice Rowe also considered that s. 8 had been interpreted to protect personal, territorial and information privacy. By contrast, in his view, s. 162(1) of the Criminal Code “can relate only to the protection of one’s physical image, a subcategory of personal privacy, itself a subcategory of that which is protected under s. 8”. (at para 102).

The minority justices also take issue with the majority’s list of contextual factors. Instead, they find that only four of the nine factors are actually required by the wording of s. 162(1) taken as a whole. These are: location, the subject matter of the observation or recording; the purpose for which it was made; and the complainant’s awareness of the observation or recording. For the minority justices, the five other factors identified by the majority are relevant only to sentencing.Thus, for the minority, the existence of a relationship of trust is not a factor in assessing whether a person is guilty of voyeurism.

Justice Rowe notes that the voyeurism offences in the Criminal Code were the first “to include a complainant’s reasonable expectation of privacy as an element of the offence.” (at para 118) Since voyeurism is a sexual offence, he argued that the concept of a reasonable expectation of privacy had to be interpreted with regard to “personal autonomy and sexual integrity”. In his view, the privacy interest in s. 162(1):

is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (at para 128)

In the context of the voyeurism offence, the minority justices were of the view that “Infringing a person’s reasonable expectation of privacy in the context of the voyeurism offence can be conceptualized as crossing a threshold where the law prioritizes the observed person’s interest in protecting their autonomy and sexual integrity over the accused’s liberty of action.” (at para 132)

Such an approach to privacy does not depend solely on location. While location is relevant, it is not determinative. For the minority justices, a privacy infringement occurs “when that which is unknown/unobserved becomes known/observed without the person having put this information forward.” (at para 136) Although a person may be undressed in some public places such as a change room, they might reasonably expect to be observed, yet they would “maintain an essential privacy interest that can be infringed by surreptitious observation or recording, with or without the use of technology, which allows more invasive access to the subject’s image than would otherwise be possible.” (at para 137)

Ultimately, the minority justices found that the students had a reasonable expectation “regarding how their bodies would be observed in the classrooms and hallways of their school” (at para 146). They found that Jarvis’ recordings “went beyond the access that the students allowed in this setting, thus infringing their autonomy”. They were also of a sexual nature, leading to the conclusion that the students’ sexual integrity was infringed.

Concluding Thoughts

The majority’s decision will likely be welcomed by many in the privacy community who had become concerned by the fact that many lower courts, in different contexts, had suggested that there can be no reasonable expectation of privacy in public space. In a society in which public space is increasingly penetrated by technology that permits surveillance and recording (the majority, for example, mentioned drones, but Jarvis’ pen camera is also an example), a contextual approach to privacy is far more useful than any distinction based on concepts of private and public space. The majority also includes the concept of relationships of trust or authority in its analysis. In Jarvis, it is hard to ignore the fact that the teacher was in a position of both trust and authority over the students. Youths should be able to trust that the adults who have authority over them will not surreptitiously record images of them for sexual purposes regardless of where they are located. The relationship is surely a factor in the reasonableness of any expectation of privacy. The majority’s contextual approach feels right in these circumstances.

At the same time, the minority is correct in noting that s. 8 jurisprudence has evolved to answer the question of whether and when individuals have a reasonable expectation of privacy vis à vis the state. As Justice Rowe observes in Jarvis, s. 162(1) is an offence that defines the circumstances in which a person’s liberty to act crosses the line and becomes criminal. His approach, which links the expectation of privacy to considerations present in the wording of the offence (including location, purpose of recording, the subject matter of the observation or recording, and the complainant’s awareness of the filing), is meant to keep the offence more narrowly focused to preserve the balance between one person’s liberty and the other person’s autonomy and sexual integrity. As noted earlier, the language “reasonable expectation of privacy” also appears in the laws of those provinces that have made it a tort to disseminate intimate images without consent. For the minority justices, the issue is whether the offender has made public something that the victim had not wished to have public – something that undermines her autonomy and sexual integrity.

The problem with the minority approach, however, may lie in what made this case – which must have seemed like a no-brainer to so many – have to go all the way to the Supreme Court of Canada for a conviction to be entered. The trial judge in this case obviously struggled with his own perceptions that the young women in question were ‘putting it out there’.He wrote: “[i]t may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling” (Trial decision, at para 46). Perhaps the Court of Appeal’s focus on the public nature of the school and its hallways is also influenced that this idea that women’s bodies in public spaces are there for consumption. Without the majority’s contextual approach – one that directs us to consider a range of factors including the youth of victims and relationships of trust – the decisions from the courts below are perhaps proof enough that a more pared-down focus on “autonomy and sexual integrity” may just not cut it.

On February 5, 2019 the Ontario Government launched a Data Strategy Consultation. This comes after a year of public debate and discussion about data governance issues raised by the proposed Quayside smart cities development in Toronto. It also comes at a time when the data-thirsty artificial intelligence industry in Canada is booming – and hoping very much to be able to continue to compete at the international level. Add to the mix the view that greater data sharing between government departments and agencies could make government ‘smarter’, more efficient, and more user-friendly. The context might be summed up in these terms: the public is increasingly concerned about the massive and widespread collection of data by governments and the private sector; at the same time, both governments and the private sector want easier access to more and better data.

Consultation is a good thing – particularly with as much at stake as there is here. This consultation began with a press release that links to a short text about the data strategy, and then a link to a survey which allows the public to provide feedback in the form of answers to specific questions. The survey is open until March 7, 2019.It seems that the government will then create a “Minister’s Task Force on Data” and that this body will be charged with developing a draft data strategy that will be opened for further consultation. The overall timeline seems remarkably short, with the process targeted to wrap up by Fall 2019.

The press release telegraphs the government’s views on what the outcome of this process must address. It notes that 55% of Canada’s Big data vendors are located in Ontario, and that government plans “to make life easier for Ontarians by delivering simpler, faster and better digital services.” The goal is clearly to develop a data strategy that harnesses the power of data for use in both the private and public sectors.

If the Quayside project has taught anyone anything, it is that people do care about their data in the hands of both public and private sector actors. The press release acknowledges this by referencing the need for “ensuring that data privacy and protection is paramount, and that data will be kept safe and secure.” Yet perhaps the Ontario government has not been listening to all of the discussions around Quayside. While the press release and the introduction to the survey talk about privacy and security, neither document addresses the broader concerns that have been raised in the context of Quayside, nor those that are raised in relation to artificial intelligence more generally. There are concerns about bias and discrimination, transparency in algorithmic decision-making, profiling, targeting, and behavioural modification. Seamless sharing of data within government also raises concerns about mass surveillance. There is also a need to consider innovative solutions to data governance and the role the government might play in fostering or supporting these.

There is no doubt that the issues underlying this consultation are important ones. It is clear that the government intends to take steps to facilitate intra-governmental sharing of data as well as greater sharing of data between government and the private sector. It is also clear that much of that data will ultimately be about Ontarians. How this will happen, and what rights and values must be protected, are fundamental questions.

As is the case at the provincial and federal level across the country, the laws which govern data in Ontario were written for a different era. Not only are access to information and protection of privacy laws out of date, data-driven practices increasingly impact areas such as consumer protection, competition, credit reporting, and human rights. An effective data strategy might need to reach out across these different areas of law and policy.

Privacy and security – the issues singled out in the government’s documents – are important, but privacy must mean more than the narrow view of protecting identifiable individuals from identity theft. We need robust safeguards against undue surveillance, assurances that our data will not be used to profile or target us or our communities in ways that create or reinforce exclusion or disadvantage; we need to know how privacy and autonomy will be weighed in the balance against the stimulation of the economy and the encouragement of innovation. We also need to consider whether there are uses to which our data should simply not be put. Should some data be required to be stored in Canada, and if so in what circumstances? These and a host of other questions need to be part of the data strategy consultation. Perhaps a broader question might be why we are talking only about a data strategy and not a digital strategy. The approach of the government seems to focus on the narrow question of data as both an input and output – but not on the host of other questions around the digital technologies fueled by data. Such questions might include how governments should go about procuring digital technologies, the place of open source in government, the role and implication of technology standards – to name just a few.

With all of these important issues at stake, it is hard not to be disappointed by the form and substance of at least this initial phase of the government's consultation. It is difficult to say what value will be derived from the survey which is the vehicle for initial input. Some of the questions are frankly vapid. Consider question 2:

2. I’m interested in exploring the role of data in:

creating economic benefits

increasing public trust and confidence

better, smarter government

other

There is no box in which to write in what the “other” might be.And questions 9 to 11 provide sterling examples of leading questions:

9. Currently, the provincial government is unable to share information among ministries requiring individuals and businesses to submit the same information each time they interact with different parts of government. Do you agree that the government should be able to securely share data among ministries?

Yes

No

I’m not sure

10. Do you believe that allowing government to securely share data among ministries will streamline and improve interactions between citizens and government?

Yes

No

I’m not sure

11. If government made more of its own data available to businesses, this data could help those firms launch new services, products, and jobs for the people of Ontario. For example, government transport data could be used by startups and larger companies to help people find quicker routes home from work. Would you be in favour of the government responsibly sharing more of its own data with businesses, to help them create new jobs, products and services for Ontarians?

Yes

No

I’m not sure

In fairness, there are a few places in the survey where respondents can enter their own answers, including questions about what issues should be put to the task force and what skills and experience members should have. Those interested in data strategy should be sure to provide their input – both now and in the later phases to come.

Note: This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

In early January 2019, Bell Canada caught the media spotlight over its “tailored marketing program”. The program will collect massive amounts of personal information, including “Internet browsing, streaming, TV viewing, location information, wireless and household calling patterns, app usage and the account information”. Bell’s background materials explain that “advertising is a reality” and that customers who opt into the program will see ads that are more relevant to their needs or interests.Bell promises that the information will not be shared with third party advertisers; instead it will enable Bell to offer those advertisers the ability to target ads to finely tuned categories of consumers. Once consumers opt in, their consent is presumed for any new services that they add to their account.

This is not the first time Bell has sought to collect vast amounts of data for targeted advertising purposes. In 2015, it terminated its short-lived and controversial “Relevant Ads” program after an investigation initiated by the Privacy Commissioner of Canada found that the “opt out” consent model chosen by Bell was inappropriate given the nature, volume and sensitivity of the information collected. Nevertheless, the Commissioner’s findings acknowledged that “Bell’s objective of maximizing advertising revenue while improving the online experience of customers was a legitimate business objective.”

Bell’s new tailored marketing program is based on “opt in” consent, meaning that consumers must choose to participate and are not automatically enrolled. This change and the OPC’s apparent acceptance of the legitimacy of targeted advertising programs in 2015 suggest that Bell may have brought its scheme within the parameters of PIPEDA. Yet media coverage of the new tailored ads program generated public pushback, suggesting that the privacy ground has shifted since 2015.

The rise of big data analytics and the stunning recent growth of artificial intelligence have sharply changed the commercial value of data, its potential uses, and the risks it may pose to individuals and communities. After the Cambridge Analytica scandal, there is also much greater awareness of the harms that can flow from consumer profiling and targeting. While conventional privacy risks of massive personal data collection remain (including the risk of data breaches, and enhanced surveillance), there are new risks that impact not just privacy but consumer choice, autonomy, and equality. Data misuse may also have broader impacts than just on individuals; such impacts may include group-based discrimination, and the kind of societal manipulation and disruption evidenced by the Cambridge Analytica scandal. It is not surprising, then, that both the goals and potential harms of targeted advertising may need rethinking; along with the nature and scope of data on which they rely.

The growth of digital and online services has also led to individuals effectively losing control over their personal information. There are too many privacy policies, they are too long and often obscure, products and services are needed on the fly and with little time to reflect, and most policies are ‘take-it-or-leave-it”. A growing number of voices are suggesting that consumers should have more control over their personal information, including the ability to benefit from its growing commercial value. They argue that companies that offer paid services (such as Bell) should offer rebates in exchange for the collection or use of personal data that goes beyond what is needed for basic service provision. No doubt, such advocates would be dismayed by Bell’s quid pro quo for its collection of massive amounts of detailed and often sensitive personal information: “more relevant ads”. Yet money-for-data schemes raise troubling issues, including the possibility that they could make privacy something that only the well-heeled can afford.

Another approach has been to call for reform of the sadly outdated Personal Information Protection and Electronic Documents Act. Proposals include giving the Privacy Commissioner enhanced enforcement powers, and creating ‘no go zones’ for certain types of information collection or uses. There is also interest in creating new rights such as the right to erasure, data portability, and rights to explanations of automated processing. PIPEDA reform, however, remains a mirage shimmering on the legislative horizon.

Meanwhile, the Privacy Commissioner has been working hard to squeeze the most out of PIPEDA. Among other measures, he has released new Guidelines for Obtaining Meaningful Consent, which took effect on January 1, 2019. These guidelines include a list of “must dos” and “should dos” to guide companies in obtaining adequate consent

While Bell checks off many of the ‘must do’ boxes with its new program, the Guidelines indicate that “risks of harm and other consequences” of data collection must be made clear to consumers. These risks – which are not detailed in the FAQs related to the program – obviously include the risk of data breach. The collected data may also be of interest to law enforcement, and presumably it would be handed over to police with a warrant. A more complex risk relates to the fact that internet, phone and viewing services are often shared within a household (families or roommates) and targeted ads based on viewing/surfing/location could result in the disclosure of sensitive personal information to other members of the household.

Massive data collection, profiling and targeting clearly raise issues that go well beyond simple debates over opt-in or opt-out consent. The privacy landscape is changing – both in terms of risks and responses. Those engaged in data collection would be well advised to be attentive to these changes.